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Expressivist theories of punishment, according to which a penal sanction articulates or expresses a certain meaning to the offender, to the victim and to society, become more and more prominent among the traditional theories of punishment as retribution or deterrence. What these theories have in common is the idea that the conveyance of the meaning is in need of a communicative action, and that the penal sanction is such a communicative act. This article argues that pure communicative theories of punishment face great difficulties in generating any justification for hard treatment. One challenge is that certain types of sanctions – in particularly, hard treatment – restrict the communicative opportunities of the incarcerated individual; which generates a paradox, in that it turns punishment into a communicative action of non-communication. Beyond that, moreover, all practices of hard treatment potentially become unnecessary, if expressing the moral message of censure constitutes a kind of action in itself, and as such, itself a treatment of the offender, embedded in a communicative relationship between offender, victim and society; such that we may be able to think of the history of punishment as a development where hard treatment becomes more and more unnecessary for the conveyance of the message.

In political or social philosophy, we speak about power all the time. Yet the meaning of this important concept is rarely made explicit, especially in the context of normative discussions. But as with many other concepts, once one considers it more closely, fundamental problems arise, such as whether a power relation is necessarily a relation of subordination and domination. In the following, I suggest a novel understanding of what power is and what it means to exercise it.

Based on Foucault’s analysis of German Neoliberalism and his thesis of ambiguity, the following paper draws a two-level distinction between individual and regulatory ethics. The individual ethics level – which has received surprisingly little attention – contains the Christian foundation of values and the liberal-Kantian heritage of so called Ordoliberalism – as one variety of neoliberalism. The regulatory or formal-institutional ethics level on the contrary refers to the ordoliberal framework of a socio-economic order. By differentiating these two levels of ethics incorporated in German Neoliberalism, it is feasible to distinguish dissimilar varieties of neoliberalism and to link Ordoliberalism to modern economic ethics. Furthermore, it allows a revision of the dominant reception of Ordoliberalism which focuses solely on the formal-institutional level while mainly neglecting the individual ethics level.

The past thirty years have seen dramatic changes to the character of state membership regimes in which practices of easing access to membership for resident non-citizens, extending the franchise to expatriate citizens as well as, albeit in typically more limited ways, to resident non-citizens and an increasing toleration of dual nationality have become widespread. These processes of democratic inclusion, while variously motivated, represent an important trend in the contemporary political order in which we can discern two distinct shifts. The first concerns membership as a status and is characterised in terms of the movement from a simple distinction between single-nationality citizens and single-nationality aliens to a more complex structure of state membership in which we also find dual nationals and denizens (Baubock, 2007a:2395-6). The second shift relates to voting rights and is marked by the movement from the requirement that voting rights are grounded in both citizenship and residence to the relaxing of the joint character of this requirement such that citizenship or residence now increasingly serve as a basis for, at least partial, enfranchisement. In the light of these transformations, it is unsurprising that normative engagement with transnational citizenship – conceived in terms of the enjoyment of membership statuses in two (or more) states – has focused on the issues of access to, and maintenance of, national citizenship, on the one hand, and entitlement to voting rights, on the other hand.

The title I have chosen seems to signal a tension, even a contradiction, in a number of respects. Democracy appears to be a form of political organisation and government in which, through general and public participatory procedures, a sufficiently legitimate political will is formed which acquires the force of law. Justice, by contrast, appears to be a value external to this context which is not so much linked to procedures of “input” or “throughput” legitimation but is understood instead as an output- or outcome-oriented concept. At times, justice is even understood as an otherworldly idea which, when transported into the Platonic cave, merely causes trouble and ends up as an undemocratic elite project. In methodological terms, too, this difference is sometimes signalled in terms of a contrast between a form of “worldly” political thought and “abstract” and otherworldly philosophical reflection on justice. In my view, we are bound to talk past the issues to be discussed under the heading “transnational justice and democracy” unless we first root out false dichotomies such as the ones mentioned. My thesis will be that justice must be “secularised” or “grounded” both with regard to how we understand it and to its application to relations beyond the state.

It has become commonplace to say that, in the past, international governance has been legitimated mainly, if not exclusively, by its welfare-enhancing ‘output’. There has been very little research, however, on the history of legitimating international governance by its output to validate this point. In this essay I begin to address this gap by inquiring into the origins of output-oriented strategies for legitimating international organizations. Scrutinizing the programmatic literature on international organizations from the early 20th century, I illustrate how a new and distinctive account of technocratic legitimation emerged and in the 1920s separated from other types of liberal internationalism. My inquiry, centring on the works of James Arthur Salter, David Mitrany, Paul S. Reinsch and Pitman B. Potter, explores their respective conceptions of ‘good functional governance’, executed by a non-political international technocracy. Their account is explicitly pitched against a notion of ‘international politics’, perceived as violent, polarizing, and irrational. The emergence of such a technocratic legitimation of international governance, I submit, needs to be seen in the context of societal modernization and bureaucratization that unfolded in the first half of the 20th century. I also highlight how in this account the material output of governance is intimately linked to the virtues of the organizational form that brings it about.

Ernst Bloch pointed out in a particularly emphatic way that the concept of human dignity featured centrally in historical struggles against different forms of unjustified rule, i.e. domination – to which one must add that it continues to do so to the present day. The “upright gait,” putting an end to humiliation and insult: this is the most powerful demand, in both political and rhetorical terms, that a “human rights-based” claim expresses. It marks the emergence of a radical, context-transcending reference point immanent to social conflicts which raises fundamental questions concerning the customary opposition between immanent and transcendent criticism. For within the idiom of demanding respect for human dignity, a right is invoked “here and now,” in a particular, context-specific form, which at its core is owed to every human being as a person. Thus Bloch is in one respect correct when he asserts that human rights are not a natural “birthright” but must be achieved through struggle; but in another respect this struggle can develop its social power only if it has a firm and in a certain sense “absolute” normative anchor. Properly understood, it becomes apparent that these social conflicts always affect “two worlds”: the social reality, on the one hand, which is criticized in part or radically in the light of an ideal normative dimension, on the other. For those who engage in this criticism there is no doubt that the normative dimension is no less real than the reality to which they refuse to resign themselves. Those who critically transcend reality always also live elsewhere.

The first part of the following paper deals with varying points of criticism forwarded against Ordoliberalism. Here, it is not the aim to directly falsify each argument on its own; rather, the author tries to give a precise overview of the spectrum of critique. The second section picks out one argument of critical review – namely that the ordoliberal concept of the state is somewhat elitist and grounded on intellectual experts. Based on the previous sections, the final part differentiates two kinds of genesis of norms: an evolutionary and an elitist one – both (latently) present within Ordoliberalism. In combination with the two-level differentiation between individual and regulatory ethics, the essay allows for a distinction between individual-ethical norms based on an evolutionary genesis of norms and regulatory-ethical norms based on an elitist understanding of norms. A by-product of the author’s argument is a (further) demarcation within neoliberalism.

The concept of embeddedness plays a central role in the segment of economic sociology and social theory which is inspired by the works of Karl Polanyi. But to the extent that embeddedness is understood in a substantialist manner, implying the existence of a unitary lifeworld, the desire for embeddedness is an impossible aspiration under modern conditions. Throughout the modern era it is however possible to observe the emergence of complex societal stabilization mechanisms, which serve as substitutes to traditional forms of embeddedness. The emergence of function specific cultures, in the form of, for example, legal, political and scientific cultures, establishing a ‘second nature’ in the Hegelian sense, is one example of this. Other examples are (neo-)corporatist institutions which fulfilled a central stabilising role in classical modernity and the kind of network based governance arrangements which fulfil a similar position in today’s radicalised modernity.

On the backdrop of the 2008 financial crisis this paper introduces an understanding of societal crises as a reduction in the meaning production of social entities, which can either be internally or externally provoked. The emergence of constitutions and, more generally, constitutional structures, can be understood as responses to both forms of crisis. This is the case because they are double-edged structures which are simultaneously oriented towards the maintenance of internal order and stability within a given social entity at the same time as they frame the transfer of the meaning components between the social entities and their environments. Thus, the 2008 financial crisis indicates a failure of constitutional bonding. When observed from an overall structural perspective, the reasons for this failure can be traced back to an increased discrepancy between the structural composition of world society and the constitutional structures in place. The crisis reflects a failure to respond to two simultaneous, inter-related and mutually re-inforcing structural transformations. First, there is the increased globalisation, which has led to massive dis-locations in the relative centrality of the different national configurations for the reproductive processes of functional systems. Second, there is a structural transformation of the transnational layer of world society through a reduced reliance on the centre/periphery differentiation and an increased reliance on functional differentiation. One of the many consequences of this development is the emergence of new forms of transnational law and politics. A new constitutional architecture which reflects these transformations is needed in order to ensure an adequate constitutional bonding of economic processes, as well as of other social processes.